It seems to that the bill [S. 158] is constitutional insofar as it deprives the lower federal courts of jurisdiction but unconstitutional insofar as it attempt to prescribe a rule of decision for the courts under the Fourteenth Amendment.
Before coming to that, it should be said that if S. 158 were enacted and held constitutional it is not at all clear what the results would be. States might choose to allow many types of abortions simply by not banning them. Under the premises of S. 158 that would be the equivalent of not having a law against some kinds of homicides.
It has been said that passage of S. 158 would not interfere with private abortions, which seems correct since there is in such cases no state action. But it has also been said that passage of the law would preclude federal or state funding of abortions. That seems less clear. The state courts, and ultimately the Supreme Court, would have before them a case involving the clash of two constitutional rights -- that of the woman and that of the fetus. The fact that the constitutional right of the woman to an abortion is the result of judicial legislation is, in this context, irrevelant. Given the clash of two constitutional rights, it is impossible to say how the Supreme Court would adjust them.
I mention these matters merely to suggest that S. 158 may not be a cure-all. We do not know what it would become in the hands of the courts, even if they accepted it, at least nominally, as constitutional.
The fact is that S. 158 proposes a change in our constitutional arrangements no more drastic than that which the judiciary has accomplished over 25 years. Without any warrant in the Constitution, the courts have required so many basic and unsettling changes in American life and government that a political response was inevitable. Though I do not think it desirable that the political response should succeed in the form this bill takes, the fact of expressed political outrage at such judicial usurpation is in many ways a healthy development in our constitutional democracy.
The judiciary have a right, indeed a duty, to require basic and unsettling changes, and to do so, despite any political clamor, when the Constitution, fairly interpreted, demands it. The trouble is that nobody believes the Constitution allows, much less demands, the decision in Roem v. Wadem in dozens of those cases of recent years. Not even those most in sympathy with the results believe that, as demonstrated by a growing body of literature attempting to justify the courts' performance on grounds of moral philosophy rather than of legal interpretation. Such justifications will not wash. The judiciary's legitimate power to set aside the dicisions and actions of elected representatives and politically responsible officials comes from the Constitution alone and is limited to a fair interpretation of the Constitution.
The question to be answered in assessing S. 158 is whether it is proper to adopt unconstitutional countermeasures to redress unconstitutional action by the court. I think it is not proper. The deformation of the Constitution is not properly cured by further deformations. Only if we are prepared to say that the court has become intolerable in a fundamentally democratic society and that there is no prospect whatever for getting it to behave properly, should we adopt a principle which contains within it the seeds of the destruction of the court's entire constitutional role. I do not think we are at that stage.